Baseball

Its been a while since our last post, between work and coaching a 9-10 baseball team, my time has been pretty eaten up, and nothing has caught my attention that inspired the effort to post. Lafe Solomon's renomination almost got me there as well as a couple of decisions, but not yet. I plan to do better.

GC Solomon issues "R" case guidance

NLRB Acting General Counsel Lafe Solomon issued a guidance memorandum concerning the NLRB's new procedures for handling representation elections. The new procedures take effect tomorrow, April 30th.

Boeing and Lafe

The Seattle Times has an interesting story on Lafe Solomon and the Boeing case, some of the political aspects and pressures, and background on Solomon himself.

Three Profs defend NLRB

Three labor law professors have an op-ed piece in the New York Times. In defense of the NLRB they pose the question in an analogous, but simple way.

Everyone agrees that a company may legally locate its production anywhere it wishes and for any reason — except retaliatory ones. Imagine if Boeing had deliberately located a new plant in an area with a predominantly white labor force and then publicly stated that it did so because it was tired of listening to discrimination complaints made by African-American employees at its home plant. If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as “real” rights.

The entire piece is well worth the read. Our previous posts are here.

Boeing Complaint

Former General Counsel to the National Labor Relations Board, Fred Feinstein has posted a piece on Politico characterizing the assault on the decision to issue a complaint in the Boeing case as nothing less than an assault on the rule of law. Its a pretty good statement of a pro-labor argument. Feinstein is not without controversy.

Boeing NLRB filing

The NLRB has filed its response to Boeing's motion to dismiss the complaint concerning the opening of a second Dreamliner production line in South Carolina.

Muddle, Meddle, Boing, Boeing

South Carolina's Attorney General has along with 14 other state's AG's filed a horribly muddled amicus brief in the Boeing case. While there are excellent arguments against the NLRB complaint, particularly the remedy sought requiring the work to be relocated, this brief only exposes the AG's utter lack of understanding of the National Labor Relations Act. Too much Chicken Little, too little understanding that the statute was designed to reign in managerial decision making.  More explained in our previous posts.

GE, the same as Boeing?

Over the past few weeks I have been in a vigorous e-mail and phone debate with a fellow management lawyer concerning the meaning and effect of the issuance of a complaint in the Boeing case. Previous posts here. Contrary to many gloomy management predictions, I think Boeing is a fairly garden variety application of long established labor law. My friend believes it is a fundamental assault on employer free speech and employer right to determine facility location.

Now we have General Electric announcing the opening of a non-union locomotive factory in Texas. At the same time it is bargaining with union workers at at its existing locomotive factory in Pennsylvania. Assuming GE executives do not articulate an anti-union motivation for their actions, as is alleged that the Boeing executives did, this sets up an ideal scenario for testing the limits of the NLRB's interpretation of a Boeing style violation. Can the announcement of the location of a new facility in a right to work state during contract negotiations ever be viewed as an unfair labor practice? The correct conclusion is obvious, it cannot, without more, be a violation. Management has the right to determine where it locates facilities, as long as the decision is not tainted with anti-union motivation. The difference in Boeing is the NLRB believes the company's actions and statements establish an anti-union motivation for its decision and issued a complaint so that the issue will be tried before an administrative law judge. Boeing may still prevail, but it will have to show the relocation to South Carolina was motivated by lawful factors.

Wrong, wrong, wrong, wrong, wrong, wrong, wrong wrong. You're wrong.

For a short opinion piece, rarely does any mainstream outfit get things so wrong. This from the WSJ. (If you are not a subscriber google search the title and you will find the article). The NLRB has issued a complaint accusing Boeing of committing an unfair labor practice when it moved a production line from Washington to South Carolina, and blamed the union's strike activity for the decision. Previous posts here. The issuance of a complaint means the NLRB believes there is sufficient evidence of a violation to warrant a trial on the issue before an administrative law judge. It is not a ruling, as the subtitle of the WSJ piece suggests. At the trial the employer will have the opportunity to prove its motivation was not based upon the union's protected right to strike, but rather was based on sound economic factors. Its really a pretty pedestrian legal theory applied to seemingly atrocious facts created by Boeing's own statements. This is law school 101. You can always file a complaint, its that pesky proof thats the hard part.

Essentially critics of the Boeing complaint are saying labor, and the federal agency protecting labor's statutory rights has no business second guessing an employer's decision to relocate a plant. That position, however, is contrary to well established labor law principles. An employer is not free to relocate a plant to avoid unionization, or because a union lawfully exercises a right (like striking). The article also implies an employer can simply move overseas. But such a move is also susceptible to a Boeing like Complaint, if it is motivated by anti-union sentiments.

The WSJ writer makes an absurd claim that the NLRB complaint is an assault on "the federal right to work law." A few senators, notably both senators from South Carolina, have introduced legislation prohibiting the NLRB or union contracts from pre-empting state right to work laws. There may be a legislative solution to this problem, but its not the proposed legislation discussed in the article. If a state passes a right to work law, there is nothing the NLRB or union can do to change the effect of the state law.  The proposed legislation is totally redundant. Section 14(b) of the NLRA already prevents the NLRB or collective bargaining agreements from interfering with state right to work laws.

Finally, right to work has nothing to do with the issues addressed in the Boeing Complaint. Right to work laws guarantee an employee does not have to belong to, or pay a union in order to keep a job in a unionized facility. Such laws do not directly affect whether an employer can relocate or not.

South Carolina 787 Washington 0, or will there be a forfeit?

Remember Boeing's move to set up a second 787 Dreamliner fabrication line in non-union South Carolina? Previous posts here. And all Boeing's talk about the unions running them out of Everett, Washington?  This from the NLRB:

NLRB Acting General Counsel Lafe Solomon today issued a complaint against the Boeing Company alleging that it violated federal labor law by deciding to transfer a second production line to a non-union facility in South Carolina for discriminatory reasons.  .  .  . 

To remedy the alleged unfair labor practices, the Acting General Counsel seeks an order that would require Boeing to maintain the second production line in Washington state. 

A trial before an administrative law judge is set for June 14. There are some very astute practitioners who sense this is another "great leap" from a pro-union NLRB, but I'm not so sure. This does not seem so much of a stretch given that Boeing initially announced the production would be in Everett, then switched it to South Carolina blaming the unions propensity to strike. A prima facie violation is made based upon the employer's statements. It is now incumbent on the employer to establish its move was based on legitimate motivation as in Dubuque Packing. Whether the Boeing case is momentous will depend on that proof, and the Board's evaluation of it.

Preemption of state secret ballot legislation

Earlier this month NLRB General Counsel Lafe Solomon urged threatened to sue four states unless they acknowledge their recently passed state laws requiring secret ballot elections are preempted by the NLRA. The four state's attorneys general have now responded. The point asserted is that the state laws are consistent with the NLRB's current law which also requires a secret ballot election when an employer refuses to recognize a union voluntarily. If that were the end of discussion, the AG's would be correct, but the head scratchers would ask what is the reason to pass such legislation. It is widely believed the legislation is a preemptive strike against the possibility the NLRB might change its rules, or Congress might pass something like EFCa. If such a conflict arose, it would be real and implicate federal preemption. Also, the state laws purport to regulate voluntary recognition, which likely will revert to pre-Dana law which guarantees no secret ballot election.

NLRB Nominations

President Obama has nominated Lafe Solomon to be General Counsel of the NLRB, and Terence F. Flynn to fill the vacant Republican seat on the Board. Solomon is currently serving as Acting General Counsel. Flynn confirmation would bring the five member Board to full strength for the first time since early 2007.

AGC Solomon presses better ULP remedies

Acting NLRB General Counsel, Lafe Solomon, issued a General Counsel's memorandum encouraging the Regions to seek more effective remedies for unfair labor practices committed during organizational campaigns. This adds to his previous instructions to seek injunctive relief for discriminatory discharges during organizing campaigns, previous post here. Included in the new memo are certain limited access remedies including access to company bulletin boards, forced reading of the Board's remedial notices and early access to employee names and addresses.

10(j) injunctions

The NLRB's Acting General Counsel Lafe Solomon has announced his intention to consider seeking 10(j) injunctions when employees are fired during organizing campaigns. Section 10(j), authorizes the NLRB to seek preliminary injunctions from federal courts to protect victims of unfair labor practices pending litigation.